The Magnitsky Clause Part 1: Profiting from the suppression of whistleblowers – what does it mean for business?
What exactly is a ‘deathbed’? That was the question for the Court of Appeal when it was asked to rule on whether or not an elderly lady had made a gift of her house to her nephew.
The case of King v Dubrey and others concerned the rather obscure legal doctrine of donatia mortis causa – which means ‘gift in contemplation of death. In other words, a ‘deathbed gift’.
There are three conditions for a valid donatia mortis causa:
In this case, June Fairbrother had given the deeds to her property to her nephew Kenneth King, who was living with her and providing care to her, saying “this will be yours when I go”. He had then put the deeds in his wardrobe. His aunt died five months later.
She made various attempts to make a Will in his favour but none of them were legally valid. The £350,000 property was the main asset in her estate and Kenneth’s claim to it was challenged by various animal charities who were the beneficiaries of the only valid Will.
The case was first heard by the High Court where the charities made a number of arguments:
The High Court concluded that there was a valid donatio mortis causa and the house validly passed to Kenneth.
In case he was wrong, the judge added that if there was no valid donatio mortis causa then Kenneth would be entitled to a hypothetical lump sum of £75,000 on the basis that he was financially dependent on the deceased.
However, two of the charities appealed the decision to the Court of Appeal in King v Chiltern Dog Rescue and another.
The Court of Appeal held that although Mrs Fairbrother had ‘parted dominion’ with the property by handing over the deeds to the unregistered property, the first two requirements of the donation mortis causa were not satisfied:
She had not been ‘contemplating death’ as she did not have a fatal illness and nor was she about to undergo a dangerous operation or make a dangerous journey. In other words, she was not yet on her ‘deathbed’.
She had not made a gift conditional on death. The words she used had been “this will be yours when I go”, which a statement intent to make a Will rather than a gift. Indeed, this was evidenced by various Wills she had tried to make in her nephews favour, none of which satisfied the legal requirements.
The nephew also appealed the first instance finding of a ‘hypothetical’ lump sum payment of £75,000 as being inadequate. He reckoned £150,000 would be more like it. However, the Court of Appeal said that there were no grounds for overturning the original decision.
The Court of Appeal held that although Mrs Fairbrother had ‘parted dominion’ with the property by handing over the deeds to the unregistered property, the first two requirements of the donation mortis causa were not satisfied
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